Wall of sound

Is noise from customers leaving a licensed venue the responsibility of the licence holder or the individual? Jonathan Hyldon examines the legal background.

In the recent case of Kouttis v London Borough of Enfield (9 September 2011), which was previously reported in Local Government Lawyer, a District Judge rejected an appellant’s argument that noise from customers leaving a venue was a matter for their individual responsibility and should not have led to a reduction in licensed hours.

A great deal of excitement appears to have been generated by this case and I am already aware of it being referred to in a licensing review hearing.

Before considering the responsibility of the licence holder or the individual it should be noted that Kouttis was a decision handed down in the Magistrates’ Court. Therefore unlike a case decided upon in the High Court this is not binding on anyone else and can therefore only be cited as an example of the approach taken elsewhere. Yes, it may be stated that the case was decided by a District Judge but again all persons familiar with legal decisions in the licensed trade will know that one District Judge will find one way and another on similar facts will find in the exact opposite way!

In Kouttis Trading Standards together with the support of a number of residents applied to remove musical entertainment from the licence of the Willow Public House in Winchmore Hill and reduce its hours due to noise emanation from the premises and public nuisance from customers vacating the premises.

The appellant argued that noise from customers vacating the premises was their individual responsibility and should not have led to a reduction in licensing hours.

The appellant relied upon Guidance issued under section 182 of the Licensing Act 2003 which makes specific reference to customers in the vicinity of premises in both the context of crime and disorder and public nuisance.

In relation to Crime and Disorder paragraph 2.4 states: “The essential purpose of the licence or certificate in this context is to regulate behaviour on premises and access to them where this relates to licensable activities and the licensing objectives. Conditions attached to licences cannot seek to manage the behaviour of customers once they are beyond the direct management of the licence holder and their staff or agents, but can directly impact on the behaviour of customers on, or in the immediate vicinity of, the premises as they seek to enter or leave.”

This raises the question of what is “the immediate vicinity” and how far does the responsibility of the premises licence holder extend outside the ambit of the licensed premises? These are both questions upon which no further guidance is provided.

The terms “immediate” and “seek to enter or leave” would imply though that the vicinity would be quite small and would not extend to incidents occurring down different streets and roads.

The geographical area is also a factor which no doubt would need to be taken into account, especially in town and city centres were premises are found clustered together within close proximity and sometimes adjacent to one another.

Paragraph 2.4 is also clear that “Conditions attached to licences cannot seek to manage the behaviour of customers once they are beyond the direct management of the licence holder and their staff.”

It would be very difficult to argue that the direct management can be classified as outside the boundary of the premises. Additionally, conditions cannot seek to manage the behaviour of customers thereby emphasising that an individual is accountable in their own right for anti-social behaviour. Further, it could also be argued that it would also be impossible to manage the behaviour of customers outside the direct management of the premises and therefore the inference to be drawn is that if incidents occur outside the ambit of the licensed premises then a premises licence holder is not responsible.

In relation to the prevention of public nuisance paragraph 2.39 states: “Beyond the vicinity of the premises, these are matters for personal responsibility of individuals under the law. An individual who engages in anti-social behaviour is accountable in their own right. However, it would be perfectly reasonable for a licensing authority to impose a condition, following relevant representations, that requires the licence holder or club to place signs at the exits from the building encouraging patrons to be quiet until they leave the area and to respect the rights of people living nearby to a peaceful night.”

Again, the question of what is “the vicinity of the premises” raises itself above the parapet. The Guidance is quite right in that an individual who engages in anti-social behaviour is accountable in their own right and the police have the requisite powers to deal with those individuals.

The example provided in relation to reasonable action which may be taken by a Licensing Authority against a premises at paragraph 2.39 is only in relation to notices being placed at the exits to the building and does not even go as far as notices outside the premises. Therefore it could be argued that the “vicinity” is very close indeed to the premises, otherwise surely an example or additional example stretching out to the wider geographical area would have been provided?

Under the Licensing Act the only other time in which vicinity is considered is in relation to representations. Paragraph 9.5 of the Guidance states that “In making their decision on the question of vicinity, licensing authorities should consider whether the individual’s residence or business is likely to be affected by disorder and disturbance occurring or potentially occurring on those premises or immediately outside the premises.”

Vicinity was considered in the case of R (on the application of 4 Wins Leisure Limited) v Licensing Committee for Blackpool Council [31 August 2007] EWHC2213 (Admin) were it was held that the question of vicinity was ultimately a matter of fact to be decided by the Licensing Authority. But this of course relates to vicinity in terms of submitting a representation which of course is soon to be abolished. Further, vicinity in this context can also be set by a Local Authority as a fixed distance from a premises and therefore this could be a radius of 100m or maybe more, which at no point could be considered the immediate vicinity of the premises as per paragraphs 2.4 and 2.39 of the Guidance.

Case law under the previous licensing regimes and, in particular with regard to public entertainment licences and special-hours certificates, did make findings in relation to incidents occurring both inside and outside a premises. It must be stressed though that this was under different legislation which has now been superseded and that without binding case law from the High Court a Licensing Authority must have regard to the Guidance issued by the Secretary of State under section 182. The requirement is binding on all Licensing Authorities to that extent. However, as long as Licensing Authorities have properly understood the Guidance, they may depart from it if they have reason to do so as long as they are able to provide full reasons.

In terms of the responsibility of the licence holder it is more likely that the Police Reform and Social Responsibility Act 2011, upon which I have previously commented for Local Government Lawyer, will have a greater effect upon the “jurisdiction” of a licensee. As well as allowing a Licensing Authority the opportunity to introduce a Late Night Levy whereby Licensing Authorities will be able to impose a charge for premises that have a late alcohol licence and the provision of Early Morning Restriction Orders that will allow Licensing Authorities to restrict sales of alcohol in the whole or a part of their areas during hours of their choice between 12am and 6am, it will also increase the powers a Licensing Authority will have to implement conditions which they think are appropriate rather than necessary.

The Act is to amend the evidence test when attaching conditions to a licence by using 'appropriate' rather than 'necessary'. The effect being that the word 'appropriate' will allow decisions to be taken on the grounds of subjective judgment as opposed to the actual facts of a case. 'Appropriate' is also not clearly defined in law whereas 'necessary', although not defined in statute, has been defined by various judgments in the past.

No doubt this will lead to numerous conditions being attached to premises licences and will lead to an influx of challenges before the Courts with the licensed trade again bearing the brunt of any incidents occurring in the night time economy.

So, although Kouttis raises the issue of responsibility in terms of the premises licence holder and the individual outside the licensed premises, it is a non-binding case based on its own facts and any Licensing Authority to whom the case is referred should only attach limited weight to it. It is one case and only provides an example of a decision in a location based on the evidence produced to that Court. Examples to the contrary on vicinity will no doubt be provided to licensing sub-committees and each decision will need to be based on its own merits.

The bigger shake up on this topic will no doubt arise upon the facilitation of the test in relation to “appropriate” as opposed to “necessary”. When the Guidance is issued hopefully the position will become clearer or at least clearer than what is “the immediate vicinity”.

Jonathan Hyldon is a solicitor at law firm John Gaunt & Partners. He can be contacted on 0114 266 8664 or by email on This email address is being protected from spambots. You need JavaScript enabled to view it..